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ANALYSIS OF DECEMBER 30, 2015 SUPREME COURT OPINION

[Posted December 30, 2015] The justices have managed to squeeze one last published opinion (and two published orders) in under the wire on the court’s last business day of 2015.

Trespass

If you go through a day and you don’t learn anything, that, in my mind, is an unsuccessful, even wasted, day. Today’s opinion in Chacey v. Garvey taught me a phrase I had never heard in this context before, so this day hasn’t been wasted after all.

This appeal deals with the value of timber, and damages for its wrongful harvesting. Twenty years ago, two landowners sold part of a large tract in Fauquier County. The sellers retained an easement over the sold tract to allow access to their remaining adjacent property.

Several years later, the sellers started cutting timber, without having first surveyed the properties to ascertain the exact boundary. You know how that turned out – the lumberjacks paid little attention to where they were, and apparently cleared some of the buyer’s acreage. The buyer sued, claiming timber theft, trespass, and property damage; she also sought injunctive relief and termination of the access easement.

Alas, trial preparations didn’t go smoothly. The buyer identified an expert to testify to the value of the lost timber, but the sellers succeeded in getting him excluded because he was identified too late. This ruling makes a great deal of difference in the case, because now the buyer had no one to opine what the value was. The pain of this ruling was felt threefold because timber-theft damages are three times the value of the timber on the stump.

We’ll now pause briefly while I mention that I had never before encountered this idiom in this context. In my experience, the only thing that belongs “on the stump” is a politician, making a bunch of promises he can’t keep, while talking to a bunch of people who were already going to vote for him anyway. In the timber milieu, it means the value of the standing trees, before they’re cut.

The parties tried the case to a jury, which returned a verdict in favor of the buyer – at least technically so. She got a token award on the timber-theft claim – $135 for reforestation costs – plus $15K for trespass. The jury also found in the buyer’s favor on the property-damage claim, but assigned no damages.

But the buyer had also pleaded a claim for attorney’s fees, based on language in a statute. It provides, as an additional remedy for timber theft, the recovery of “any directly associated legal costs incurred by the owner of the timber as a result of the trespass.” The buyer felt that her legal fees were “directly associated legal costs,” and submitted a bill for $250K. The trial court trimmed that to $165K and entered judgment.

The sellers got a writ, and the primary issue in today’s opinion is the attorney’s-fee award. The justices unanimously reverse that award and direct the trial court to award only those costs normally associated with litigation under the American Rule, where each side pays its own lawyer. The court concludes that when the legislature provides for an attorney’s-fee recovery, it uses that exact phrase consistently, so in this case, “directly associated legal costs” essentially means the same thing as “costs.”

One aspect of this ruling in particular is bound to frustrate the trial judge. The justices acknowledge that the phrase “directly associated legal costs” is unique in the Code of Virginia, appearing nowhere else; they also agree that it “clearly means more than the costs necessary for prosecution of the suit.” But in remanding the case to for a modified award, the justices give the poor trial judge little or no guidance on what he should award beyond the usual, minimal costs (filing fee, service of process, etc.). Basically, it’s up to him to figure it out.

The Supreme Court also addresses one other assignment of error, in which the sellers challenge the viability of the timber-theft claim in the absence of expert testimony. The justices speedily dispatch this assignment, noting that the statute unambiguously allows recovery of more than just the timber’s value, so the $135 award stands. If you ever think that the Supreme Court only addresses issues involving large monetary awards, here’s Exhibit A for the defense.

* * *

So with 2015 now in the books from an opinion standpoint, I can give you at least one snapshot statistic. According to my count just now from the court’s website, the justices handed down 65 published opinions, ten published orders, and 31 unpublished orders in calendar 2015. That’s 104 “rulings,” for an entire year. The combined figure in 2014 was 131. If you go back 15 years, to 2000, the number was 243.

Three months ago today, I told the audience at the Virginia Appellate Summit that appellate business was way down, and so was output, in the form of published opinions. The year that closes tomorrow has continued that trend. I cannot tell you where it will end.